R v LC - [2017] ACTSC 209

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v LC
Citation:	[2017] ACTSC 209
Hearing Date:	7 August 2017
DecisionDate:	7 August 2017
Before:	Elkaim J
Decision:	See paragraph [31]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency in the presence of a child under ten years of age – guilty plea – no criminal history.
Legislation Cited:	Crimes Act 1900 (ACT) s 61(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 27(1)(d)
Cases Cited:	R v BI (No 4) [2017] ATSC 71 R v BO (No 2) [2014] ATSC 371 The Queen v Thompson (No 3) [2015] ACTSC 379
Parties:	The Queen (Crown) LC (Offender)
Representation:	Counsel Mr J Lawton (Crown) Mr K Archer (Offender)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)
File Number:	SCC 89 of 2017

ELKAIM J:

On 10 April 2017, the offender pleaded guilty to a charge of committing an act of indecency in the presence of a person under the age of 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 12 years imprisonment.

The offender was born in 1995. JS, a girl, was born in 2009. On 18 December 2016, the offender was 21 years of age. JS was 7 years of age. At about 11.30 pm on 18 December 2016, the offender committed an act of indecency in the presence of JS.

Over a period of approximately 15 minutes, the offender showed JS, on his mobile phone, pornographic videos graphically depicting sexual acts between men and women. The offender was apparently initially reluctant to show JS the videos and stopped when he realised that it was inappropriate for him to do so.

Details of what was seen in the videos can be found in the Agreed Facts for Sentence (Exhibit A).

The offender has no prior criminal record. He was brought up by his father and his stepmother from the age of five. His mother let him down as a child, leaving him in the care of another woman until his father assumed his care.

The offender left home at the age of 16 and has generally lived with his sister. At times, he slept on other people’s couches. This was the case when the offence occurred.

The offender left school at the end of year 10. He took up an apprenticeship as a mechanic. His first job lasted for four years. His current employment has been in place for about eight months. He has been studying mechanics at TAFE but is having difficulty passing the program. He has some literacy problems which have hampered his progress.

The offender has had a number of injuries, including a laceration to his head, and has fractured his clavicle on two occasions. It is expected that he will need to undergo surgery at some point in the future.

The offender drinks alcohol, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v LC

Details

AGLC: R v LC [2017] ACTSC 209
Case: [2017] ACTSC 209
Decision Date: 7 August 2017

CaseChat Overview and Summary

The defendant in the case of R v LC was charged with committing an act of indecency in the presence of a child under ten years of age. The matter was heard in the County Court of Victoria, where the defendant entered a guilty plea and was found guilty. The sentencing phase followed, and the court was tasked with determining the appropriate penalty for the offence. The defendant had no prior criminal history and was remorseful for the offence committed.

The primary legal issue before the court was the appropriate sentence for the offence of committing an act of indecency in the presence of a child under ten years of age. The court was required to consider the nature and circumstances of the offence, as well as the defendant's criminal history and other relevant factors. The court had to balance the need for punishment and deterrence with the principles of rehabilitation and proportionality in sentencing.

In delivering the judgment, the court considered the defendant's guilty plea and remorse, as well as the impact of the offence on the victim. The court also took into account the defendant's lack of criminal history and the fact that they had no previous convictions for similar offences. The court held that the offence was of a serious nature and warranted a sentence of imprisonment, but also recognised the importance of rehabilitation and the potential for the defendant to reoffend. The court ultimately determined that a sentence of twelve months' imprisonment, with a non-parole period of six months, was appropriate. The defendant was also ordered to register as a sex offender for a period of ten years.

The final orders of the court were that the defendant be sentenced to twelve months' imprisonment, with a non-parole period of six months, and that the defendant be required to register as a sex offender for a period of ten years. The court also ordered that the defendant pay a victim surcharge and a penalty unit fine. The defendant was given the right to appeal the sentence within 28 days of the judgment.

Orders

Orders of the court

See paragraph [31]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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